United States of America, Plaintiff-appellee, v. Robert Earl Curtis, Defendant-appellant, 742 F.2d 1070 (7th Cir. 1984)

Defendant-appellant Curtis appeals from a final judgment of the district court denying his motion to vacate his conviction of bank robbery. 28 U.S.C. § 2255. The motion, filed on March 4, 1980, originally was summarily dismissed. Curtis appealed. This court, in an unpublished order dated March 1, 1982, reversed and remanded the case for an evidentiary hearing on Curtis ineffective assistance of counsel claim. On the basis of the evidence adduced at that hearing, the district court concluded that trial counsel's representation was competent and effective.

* Curtis was convicted of bank robbery largely on the testimony of Harris, co-defendant turned government star witness. Harris placed both Curtis and his car at the "switch site," where an exchange of cars was to take place following the robbery.

In his section 2255 motion, Curtis alleged that the following acts and omissions by counsel constituted ineffective assistance: (1) counsel failed to investigate Curtis' alibi defense; (2) counsel failed to present witnesses or evidence at trial to impeach Harris' testimony; and (3) counsel refused to permit Curtis to testify despite Curtis' clearly expressed desire to do so.

Both Curtis and his trial counsel, Isaiah Gant, testified at the evidentiary hearing. Gant's testimony may be summarized as follows. In initial interviews with Curtis at the jail, Curtis had denied involvement in the bank robbery, had provided Gant with a list of alibi witnesses, and had informed Gant of a repair receipt which would establish that his car was in a repair shop in Chicago at the time of the robbery in St. Anne. Subsequently, Curtis' two other co-defendants, who were released on bond, sought out Gant and informed him that Curtis and his car were involved in the robbery. When Gant confronted Curtis with this information, Curtis admitted to Gant that he had participated in the robbery. Despite that admission, Curtis insisted that Gant should seek to introduce the repair receipt into evidence at trial, stating that the shop mechanic would testify on his behalf. Gant's determination not to attempt to introduce the repair receipt, which he believed to be bogus based on his conversations with Curtis' co-defendants, was strengthened when he saw the mechanic at the courthouse prior to trial, and learned that he had been speaking with the prosecutor and had been subpoenaed by the government as a witness. When Gant asked the mechanic whether he would testify on behalf of Curtis, the mechanic responded that he did not want to get involved. Gant then informed Curtis that any attempt to introduce the repair receipt would be a crucial mistake.

Gant stated that the alibi witnesses suggested by Curtis were not called because Gant knew their testimony would be false.¹  Gant further testified that he determined not to call certain witnesses who were prepared to testify that Curtis and Harris had had a falling out because their lack of credibility outweighed any impeachment value their testimony might have.

Finally, Gant testified that his decision not to call Curtis as a witness was based upon his assessment that the best way to defend Curtis was to challenge the credibility of the government's witnesses and point out inconsistencies in the government's case; his belief that Curtis would perjure himself; and his determination that Curtis' two prior convictions of armed robbery, which would have been revealed to the jury on cross-examination, would have irreparably damaged the defense.

The most relevant portion of Curtis' testimony at the hearing was his assertion that he had not admitted his participation in the robbery to Gant. The district judge specifically stated that he believed Gant, not Curtis, on this point.

On the basis of the testimony, the district court concluded that Curtis had informed Gant of the witnesses who, and evidence which, allegedly would establish Curtis' alibi; that Gant investigated the asserted defense; and that Gant properly determined not to present the testimony of the witnesses or the documentary evidence because he believed the former would be perjured and the latter to be fabricated. The court further concluded that Gant's refusal to permit Curtis to testify was justified under the circumstances.

II

The Supreme Court recently held that the proper standard for judging an attorney's performance under the sixth amendment is that of "reasonably effective assistance." Strickland v. Washington, --- U.S. ----, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). A convicted defendant must show that counsel's performance fell below an "objective standard of reasonableness." Id., 104 S. Ct. at 2065. Specifically, the defendant must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id., 104 S. Ct. at 2066. The reviewing court then must assess whether, in light of all circumstances, these acts or omissions fell outside the wide range of professionally competent assistance. The second prong of an ineffective assistance of counsel analysis requires an assessment of prejudice resulting from the specified deficiencies in counsel's performance.

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id., 104 S. Ct. at 2068. In other words, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id., 104 S. Ct. at 2069.

III

Curtis' claim that counsel's decision not to pursue an alibi defense is evidence of ineffective assistance has been abandoned on appeal, assertedly because Curtis now recognizes the decision as a virtually unassailable strategic choice based upon counsel's assessments that the alibi witnesses lacked credibility and that the best defense was to attack Harris' credibility. In evaluating his ineffective assistance of counsel claim, Curtis would have this court focus solely upon counsel's failure to attempt to impeach Harris with the repair receipt and testimony that Curtis and Harris had had a falling out, and counsel's refusal to permit him to testify.

We note parenthetically that Curtis mischaracterizes counsel's decision not to pursue an alibi defense as a strategic choice. It was not. The district court found that the decision was based upon counsel's conclusion that the witnesses would offer perjured testimony. The court noted that counsel arrived at this conclusion after Curtis' co-defendants informed him that Curtis and his car were at the "switch site," and after Curtis admitted his participation in the bank robbery. The district court made a factual finding, based upon a credibility determination, that Curtis had admitted his involvement to Gant, and concluded that in accordance with his ethical obligation to refrain from knowingly using perjured testimony or false evidence, counsel refused to present the alibi witnesses or the repair receipt.

Curtis argues that Gant's conclusion that he, Curtis, was guilty led him to abdicate his duty to investigate the case and vigorously advocate his cause; although Gant determined that the only way to defend Curtis was to attack Harris' credibility, he failed to present evidence or the testimony of witnesses that might have cast doubt on the truth of Harris' testimony.

Curtis focuses first upon the repair receipt, which he argues could have been used to impeach Harris without confronting the perjury issue. He contends that Gant overlooked the distinction between the presence of Curtis at the "switch site" and the presence of his car there. Although Curtis had admitted his participation in the robbery, he had not admitted that his car was used. Because Harris had placed both Curtis and his car at the site, his testimony could have been partially impeached by introducing evidence that Curtis' car was in the repair shop.

We would remind Curtis that a tactical decision not to call a particular witness or seek to introduce a particular piece of evidence, if made after adequate investigation and based upon counsel's reasonable determination that damage to his client's case can thereby be avoided, cannot form the basis for a finding of ineffective assistance of counsel. When Gant, who already believed the repair receipt was fabricated, learned that the government had subpoenaed the mechanic who allegedly would testify to the authenticity of the receipt, he reasonably surmised that if he attempted to introduce the receipt, the prosecution would reveal its falsity through the mechanic's testimony. Curtis simply has not "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland v. Washington, 104 S. Ct. at 2066 (quoting Michel v. New York, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83 (1955)).

Curtis also focuses upon Gant's failure to call witnesses who would have testified to the stormy relationship between Harris and Curtis. Curtis' daughter, Consuella, was prepared to testify that Harris and Gwendolyn Owens, Harris' common-law wife, lived with Curtis; that Curtis also had a relationship with Owens, which created bad feelings between Curtis and Harris; that Harris had made advances at her, Consuella; and that as a result, Curtis had demanded that Harris move out of the house. Consuella's testimony allegedly would have established that Harris' motivation in naming Curtis as a participant was jealousy. In addition, Curtis' mother would have testified that contrary to Harris' testimony, Curtis, Harris, and several other men did not meet at her house to discuss plans for the robbery. Finally, Johnnie Mae McDonald, Curtis' sister, who apparently was implicated in the robbery by Harris but never indicted, desired to testify that contrary to Harris' testimony, Harris never came to her home to pick up "drawings or maps of the bank," and that because Harris lied about her involvement in the robbery, he also must have lied about Curtis' involvement.

The affidavits of McDonald and Consuella Curtis establish that Gant spoke personally with each about the circumstances to which they desired to testify. Although it appears that Gant did not interview Curtis' mother, the substance of her proffered testimony was made known to him by Curtis' sister. We cannot say as a matter of law that Gant's failure to call these witnesses showed incompetence. The interests and biases of all three are readily apparent; Gant's determination that their close relationships with Curtis and, in the case of McDonald, the fact that Harris had implicated her in the robbery, outweighed any impeachment value their testimony might have was a "reasonable professional judgment." Strickland v. Washington, 104 S. Ct. at 2066.

Lastly, Curtis challenges counsel's refusal to permit him to testify in his own behalf. The district court found as a matter of fact that Curtis wanted to testify and that Gant refused to put him on the stand. The district court concluded as a matter of law that Gant's refusal was justified by ethical considerations and trial strategy. Specifically, Gant, whose usual practice was not to put the defendant on the stand, believed that the defense would be harmed when Curtis' prior convictions were revealed on cross-examination. And, Gant believed Curtis would perjure himself; therefore, in accordance with Disciplinary Rule 7-102(a) (4) of the Code of Professional Responsibility, Ill.Rev.Stat. ch. 110A, Canon 7 (1980), which prohibits a lawyer from knowingly using perjured testimony, Gant refused to allow Curtis to testify.

Of key importance to the disposition of this claim is this circuit's decision in Alicea v. Gagnon, 675 F.2d 913, 923 (7th Cir. 1982), in which it was held that a criminal defendant has a constitutional right, rooted in the fifth, sixth, and fourteenth amendments, to testify in his own behalf. In so holding, we overruled in part, Sims v. Lane, 411 F.2d 661 (7th Cir. 1969). In Sims, the petitioner claimed that counsel denied him his right to testify at trial;²  counsel did so because they "did not believe that the matters the defendant asserted he would testify to were true." Id. at 662.³  The Sims court held that a defendant has no federal constitutional right to testify in his own behalf:

To the contrary, the federal rule seems to be that the exercise of this right is subject to the determination of competent trial counsel and varies with the facts of each case.

Id. at 664. The decision whether to have the defendant testify was treated as a matter of trial strategy, an inappropriate basis for a constitutional ineffective assistance of counsel claim. This court stated in Alicea that Sims was overruled "to the extent that it failed to acknowledge a federal constitutional basis for a defendant's right to testify in his own behalf." Alicea v. Gagnon, 675 F.2d at 922. One issue presented here is whether recognition of the constitutional dimensions of a defendant's right to testify mandates the conclusion that the right may not be waived by counsel as a matter of trial strategy.

Certain constitutional rights are so fundamental that they are deemed personal to a defendant, and he alone may decide whether these rights will be exercised or waived. Included are: the decision whether to plead guilty or proceed to trial, Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); the decision whether to be tried by judge or jury, Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed. 2d 268 (1942); the decision whether to appeal, Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); and the decision whether to forego the assistance of counsel, Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). In Wright v. Estelle, 572 F.2d 1071, 1077-80 (5th Cir. 1977) (en banc), Judge Godbold, dissenting from the majority decision, which assumed the existence of a personal constitutional right to testify for the purpose of applying a harmless error analysis to the denial of that right, concluded that the right to testify in one's own behalf also is of constitutional dimension, is personal to the defendant, and may not be waived by counsel under the rubric of trial strategy. Like Judge Bauer, who in overruling Sims in Alicea found Judge Godbold's dissent in Wright "particularly persuasive authority that Sims is obsolete," we find that same dissent persuasive on the issue whether the right to testify in one's own behalf is a personal one which may not be waived by counsel.

We recognize that the exercise of certain constitutional rights, such as a defendant's sixth amendment right to present evidence and witnesses on his behalf, are subject to control and direction by defense counsel; however, we do not believe the decision whether the defendant will testify falls within this category. See Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S. Ct. 2497, 2510 n. 1, 53 L. Ed. 2d 594 (1977) (Burger, J., concurring) ("Only such basic decisions as whether to plead guilty, waive a jury, or testify in one's own behalf are ultimately for the accused to make."). See also ABA Standards for Criminal Justice, The Defense Function Sec. 4-5.2 (1980). We believe that a defendant's personal right to forego the assistance of counsel and conduct his own defense, recognized in Faretta, also encompasses his personal right to testify in his own behalf as a part of that defense. That a defendant's decision to do so may be unwise from a tactical standpoint also may be said of a defendant's personal decision to proceed to trial or to invoke his right to a trial by jury. But, as Judge Godbold put it, " [t]he wisdom or unwisdom of the defendant's choice does not diminish his right to make it." Wright v. Estelle, 572 F.2d at 1079.

When a defendant asserts that he desires to exercise his constitutional right to testify truthfully, counsel's duty is to inform the defendant why he believes this course will be unwise or dangerous. If a defendant insists on testifying, however irrational that insistence might be from a tactical viewpoint, counsel must accede. We hold that a defendant's personal constitutional right to testify truthfully in his own behalf may not be waived by counsel as a matter of trial strategy. Any remnant of the Sims decision that suggests otherwise is no longer viable.

It is equally clear, however, that a defendant has no constitutional right to testify perjuriously in his own behalf. The specifics of what Curtis wanted to testify to were revealed by him at the evidentiary hearing: "I would have stated that I was in Chicago all day on the 19th of November." The district court made a factual finding, to which we previously referred, that Curtis had admitted his participation in the robbery to Gant. Because it seems apparent that Curtis would have testified perjuriously, counsel's refusal to put him on the witness stand cannot be said to have violated Curtis' constitutional rights.⁴ 

The district court's judgment denying Curtis' motion to vacate his conviction is AFFIRMED.